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Jun 25, 2018

Final Regs On Representation Of Claimants Approved

     The Office of Management and Budget has concluded its review of regulatory changes proposed by the Social Security Administration titled Revisions to Rules of Conduct and Standards of Responsibility for Appointed Representatives. This is the final review. The agency may now publish this as final regulations.
     We won't know what is in the final regulations until they're published, which will probably happen in the near future. Here's what I wrote at the time these regulations were first proposed:
The summary provided by Social Security includes a sentence that seems to encapsulate their approach: 
The changes to our rules are not meant to suggest that any specific conduct is permissible under our existing rules; instead, we seek to ensure that our rules of conduct and standards of responsibility are clearer as a whole and directly address a broader range of inappropriate conduct
     Social Security thinks it's important to point out that there's no representative conduct that they find permissible but plenty they want to forbid because they believe it's inappropriate? That certainly suggests as attitude.
     Here's a couple of excerpts from the proposal:
A representative should not withdraw after a hearing is scheduled unless the representative can show that a withdrawal is necessary due to extraordinary circumstances, as we determine on a case-by-case basis. ...
Disclose in writing, at the time a medical or vocational opinion is submitted to us or as soon as the representative is aware of the submission to us, if: ...
  • (ii) The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of the individual providing opinion evidence.
     Why would these be a problem? 
     As to the withdrawal provision, the agency insists on recognizing only individual lawyers as representing claimants, not law firms. Prohibiting the substitution of one attorney for another after a hearing is scheduled makes it difficult for a law firm to properly allocate its resources and makes it easy for individual attorneys employed by a firm to pick up and leave their firm with the files of their clients after the firm has spent large sums of money on the cases over the many months or years that the firm has represented the claimants. I don't know what the point of this is other than to harass law firms. Let me anticipate the response from a government employee. "Law firms don't spend much money on Social Security cases -- only a few dollars obtaining medical records -- so that's no big deal." Anyone who thinks this has never run a law firm. Law firms spend almost all of their money on salaries and other overhead. The problem is that a law firm may spend thousands of dollars on the office overhead associated with a case only to see an attorney waltz away at the last minute pocketing the entire fee. Is it unreasonable for a law firm to try to make this difficult? What exactly is the problem with a law firm substituting one attorney for another after a hearing is scheduled? It doesn't delay anything. 
     As to the requirement that attorneys notify Social Security if they suggest medical treatment, if I tell my client that he or she ought to get in psychiatric treatment, I'm supposed to disclose this to Social Security if the psychiatrist later offers an opinion? What if I tell my client to get back to the doctor he or she used to see? Am I supposed to carefully track the advice I give clients about medical treatment?

4 comments:

  1. The reason the agency wants to make attorneys hold onto cases once hearings get scheduled is b/c if claimants show to a hearing unrepped, they have to offer them a chance to postpone to obtain another attorney or else get a waiver and proceed. Hearings of unrepped claimants take much longer. This is basically a way to make their problem our problem.

    It happens quite frequently where claimants fail to disclose or understate post AOD work activity and I only find out about it when reviewing New Hire queries in the D section. It is the policy of my firm to make every effort to get the claimant to withdraw the request for hearing to avoid a messy situation for everyone involved, but in some cases, the claimant refuses even though there is no 12 month period they are not making SGA. Am I really supposed to hold onto those cases? It also happens quite frequently that a claimant will just drop off the face of the earth, quit answering/returning calls/emails and quit cooperating with my staff. How am I supposed to zealously represent such clients?

    This is a mind bogglingly stupid proposal.

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  2. "What exactly is the problem with a law firm substituting one attorney for another after a hearing is scheduled? It doesn't delay anything. "

    There is no prohibition to adding another attorney in your firm after the hearing is scheduled. Multiple representatives are allowed. Just add the "hearing attorney" to the claim.

    This procedure would also provide some protection against an associate walking off with a case at the last minute and pocketing the entire fee.

    Finally, why should you withdraw after the client hired you individually to represent him or her?

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  3. "A representative should not withdraw after a hearing is scheduled unless the representative can show that a withdrawal is necessary due to extraordinary circumstances, as we determine on a case-by-case basis. ..."

    Hey Genius, what if I can't ethically tell you the specifics of why I am/drawing?

    Stupid Bureaucratic "F"s.

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  4. I'm pretty sure that the advice I give to my clients, even if it's to go see a particular doctor, is still privileged. Even in bizarro "SSA world."

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